Roadway Express, Inc. v. Baron Jenkins

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in holding that the employee proved by a preponderance of the evidence that the aggravation of his pre- existing back condition was caused by a June 23, 1999 work-related accident. The employer also argues that the trial court erred in holding that the employee had proven by a preponderance of the evidence that he suffered a 4% permanent partial disability to the body as a whole as a result of the same work-related accident. The employer has filed a motion requesting that this Court consider post-judgment facts. Specifically, the employer requests that this Court consider the fact that the employee returned to work for the employer during the pendency of this appeal. Under the unique circumstances of this case, we decline to consider the post- judgment facts. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. David T. Hooper, Brentwood, Tennessee for appellant, Roadway Express, Inc. Peter M. Olson, Clarksville, Tennessee, for appellee, Baron Jenkins. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code. Ann. _ 5-6-225 (e)(2); Stone v. City of McMinnville, 896 S.W. 2d 548, 55 (Tenn. 1995). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND At the time of the final proceeding in the trial court, Baron Jenkins was thirty-eight years old and had a high school education. He served in the United States Marine Corps and received an honorable discharge. Since his discharge from service, his employment has consisted of working in a janitorial service, in a tile manufacturing plant, as a landscaper, as a truck delivery person, or in other labor intensive employment. Almost all of his previous employment involved heavy lifting. In June 1999, Jenkins was a "dock checker" at Roadway Express. This job required him to unload freight from trailers and load the freight onto other trailers. On June 23, 1999, Jenkins was lifting a heavy dock plate and injured himself. That evening, he complained of shortness of breath and pain in his rib cage. Jenkins expressed a fear that he might be having a heart attack. He was transported by ambulance to Southern Hills Medical Center where he was treated by Dr. David Schroeder, a board-certified emergency room physician. Dr. Schroeder's examination revealed pain in the chest wall that was treated by an injection of Demerol. Dr. Schroeder opined that Jenkins had pulled a muscle. Jenkins returned to work that evening and indicated on the Employee's Notice of Injury or Recurrence that he had chest pains and back muscle strains around his right rib cage related to pulling up a dock plate at work. On June 24, 1999, the very next day, Roadway Express denied workers' compensation benefits after determining that Jenkins had not suffered a heart attack. Approximately four days after the injury, Jenkins sought emergency treatment at Gateway Medical Center in Clarksville, complaining of a low back injury and pain in his right leg. He was treated by Dr. Stephen Kent. Dr. Kent had previously treated Jenkins on December 13, 1998 for a back injury unrelated to his employment. Jenkins was subsequently referred to Dr. Lloyd Walwyn, a board-certified orthopedic surgeon, for an independent medical evaluation. Dr. Walwyn completed a Form C- 32 on